AOS on visa waiver?

[The Heub's 0]

Hi there i was wondering if anyone could help us ...i entered the us on a visa waiver nad married my husband we did not know off any complications while doing this may i add. Since we have been married we have tried every possiblilty off making everything legal..have been to the immigration and were informed that we could apply for the AOS at anytime as long as i had proof of legal entry to the US. The nxt few months i had health problems and we spent that time saving for the filing fee, as like i said we had been told that we were not breaking any laws. When we returned to the immigration a few months later we were informed that i had to return home asap as the visa had expired and that a new law had been passed stating that ANY pending cases for adjustment in this same situation were being denied. We are so confused trying to do the right thing and everytime things are not as they seem.We have our documents ready to send and have been advised by our attorney that i can potentially get into trouble for now doing this. I am from England and he is a US citizen our marriage was not planned we just fell in love.. we cannot bear to be apart its such a difficult situation and any thoughts would be welcome.

[JimVaPhuong 4,863]

There was no new law. What there have been are some relatively new decisions in federal appeals courts. These decisions have affected the way that AOS is handled for VWP entrants.

Here's the thing.

There is a "no contest" clause in the VWP agreement. This clause states that you cannot appeal any decision by any immigration officer, and that the decision is not subject to review. The intention of this clause was to prevent people from using the VWP to tie up immigration courts - it's something you give up in return for being allowed to enter without a visa. Prior to these federal court decisions, this didn't have a lot of impact on AOS cases for VWP entrants. They were adjudicated pretty much like any other AOS case, with the primary exception being that a denial was final - no appeal or review. One of the key findings in these federal court cases was that a VWP entrant who overstayed was immediately deportable, meaning they could be deported on the order of any immigration officer. A hearing before an immigration judge was not required because they waived any right to appeal or review when they entered using the VWP. This completely changed the way that some USCIS field offices were handling AOS cases for VWP overstays. Being "immediately deportable" has the same effect as an immigration judge ordering a deportation, so field offices in the jurisdiction of these federal courts began denying AOS cases for VWP overstays and ordering them removed from the US.

This situation is still unfolding, and a lot of people have been waiting for the other shoe to drop, which is to say that they've been waiting for a policy decision from the director of USCIS which will make the policy uniform throughout all USCIS field offices. If a decision has been made, then it hasn't been published yet. New policies are usually published when they issue a revision to the Adjudicators Field Manual. The speculation by a lot people, including many immigration lawyers, is that any new policy would not contradict the findings of the federal appeals courts. In all likelihood, it would mean that all USCIS field offices would deny AOS for VWP overstays as a matter of policy.

It's distinctly possible that the USCIS field office you contacted was still operating under the old policies when you first contacted them, but have shifted their policy in the meantime. The immigration attorney you contact has probably experienced this policy shift first hand with his own clients, which is why he's giving the advice you received.

If you currently have less than 180 days of overstay then I suggest you leave the US before you cross this line. After 180 days you will receive an automatic 3 year ban from the United States, and you'll need a hardship waiver in order to return. These are difficult to get. If you stay and try to adjust status, and your AOS application is denied, you will probably be ordered removed from the US. This order also carries a potential ban from the US, which also requires a hardship waiver to overcome. On the other hand, if you leave before accumulating 180 days of overstay then there will be no ban, and your husband will be able to petition for a CR1 visa, and you could be back in the US with a green card within a year.

[Dakine10 5,452]

There was no new law. What there have been are some relatively new decisions in federal appeals courts. These decisions have affected the way that AOS is handled for VWP entrants.

Here's the thing.

There is a "no contest" clause in the VWP agreement. This clause states that you cannot appeal any decision by any immigration officer, and that the decision is not subject to review. The intention of this clause was to prevent people from using the VWP to tie up immigration courts - it's something you give up in return for being allowed to enter without a visa. Prior to these federal court decisions, this didn't have a lot of impact on AOS cases for VWP entrants. They were adjudicated pretty much like any other AOS case, with the primary exception being that a denial was final - no appeal or review. One of the key findings in these federal court cases was that a VWP entrant who overstayed was immediately deportable, meaning they could be deported on the order of any immigration officer. A hearing before an immigration judge was not required because they waived any right to appeal or review when they entered using the VWP. This completely changed the way that some USCIS field offices were handling AOS cases for VWP overstays. Being "immediately deportable" has the same effect as an immigration judge ordering a deportation, so field offices in the jurisdiction of these federal courts began denying AOS cases for VWP overstays and ordering them removed from the US.

This situation is still unfolding, and a lot of people have been waiting for the other shoe to drop, which is to say that they've been waiting for a policy decision from the director of USCIS which will make the policy uniform throughout all USCIS field offices. If a decision has been made, then it hasn't been published yet. New policies are usually published when they issue a revision to the Adjudicators Field Manual. The speculation by a lot people, including many immigration lawyers, is that any new policy would not contradict the findings of the federal appeals courts. In all likelihood, it would mean that all USCIS field offices would deny AOS for VWP overstays as a matter of policy.

It's distinctly possible that the USCIS field office you contacted was still operating under the old policies when you first contacted them, but have shifted their policy in the meantime. The immigration attorney you contact has probably experienced this policy shift first hand with his own clients, which is why he's giving the advice you received.

If you currently have less than 180 days of overstay then I suggest you leave the US before you cross this line. After 180 days you will receive an automatic 3 year ban from the United States, and you'll need a hardship waiver in order to return. These are difficult to get. If you stay and try to adjust status, and your AOS application is denied, you will probably be ordered removed from the US. This order also carries a potential ban from the US, which also requires a hardship waiver to overcome. On the other hand, if you leave before accumulating 180 days of overstay then there will be no ban, and your husband will be able to petition for a CR1 visa, and you could be back in the US with a green card within a year.

I agree, and I think the most alarming thing is the 9th circuit court has allowed the law that allows deportation without contest to trump the law that would allow adjustment of status. There is nothing in the law that demands that should be the case. Seems to be a very hardline approach. (link below)

The best to hope for is that the courts have misinterpereted the law, which does happen from time to time. Unfortunately these things don't always resolve quickly.

http://www.montaglaw.com/articles/articles_16.html

Edited September 15, 2010 by Dakine10

[JimVaPhuong 4,863]

I agree, and I think the most alarming thing is the 9th circuit court has allowed the law that allows deportation without contest to trump the law that would allow adjustment of status. There is nothing in the law that demands that should be the case. Seems to be a very hardline approach. (link below)

The best to hope for is that the courts have misinterpereted the law, which does happen from time to time. Unfortunately these things don't always resolve quickly.

http://www.montaglaw.com/articles/articles_16.html

Since similar decisions have been reached in at least 3 circuit courts, it would probably take a Supreme Court decision to overturn these rulings. In at least one of those cases (don't remember which) the court even questioned it's own jurisdiction to hear the case. The "no contest" clause specifically disallows review or appeal. In the end, they agreed to hear the case because the petitioner posed a constitutional challenge that needed to be addressed.

My gut feeling is that USCIS would take a much harder approach in AOS cases from many types of visas if they had the legal authority to do so. There was a time when they would routinely deny an AOS if they suspected preconceived intent, but that was ended by a few precedent cases. I think they suspect that most of these cases are an attempt to circumvent the immigrant visa process. A VWP entry is one case where the courts have said they have the authority to do something about it.

[The Heub's 0]

Since similar decisions have been reached in at least 3 circuit courts, it would probably take a Supreme Court decision to overturn these rulings. In at least one of those cases (don't remember which) the court even questioned it's own jurisdiction to hear the case. The "no contest" clause specifically disallows review or appeal. In the end, they agreed to hear the case because the petitioner posed a constitutional challenge that needed to be addressed.

My gut feeling is that USCIS would take a much harder approach in AOS cases from many types of visas if they had the legal authority to do so. There was a time when they would routinely deny an AOS if they suspected preconceived intent, but that was ended by a few precedent cases. I think they suspect that most of these cases are an attempt to circumvent the immigrant visa process. A VWP entry is one case where the courts have said they have the authority to do something about it.

Thanks for the replies and information. The only thing I really do not understand is that when applying for the AOS within the 180 days, the clock so to speak stops ticking until the decision is made by the immigration department. So if it was denied, I would technically not of overstayed the 180 days? so if i left the country before that time expired why would i still have the chance off a 3 yr ban? Is it down to the fact of being deported?

[Harpa Timsah 13,258]

If you failed, you could be deported, and then you'd need to file a waiver. That waiver is different from the overstay waiver.

[marlea 84]

Thanks for the replies and information. The only thing I really do not understand is that when applying for the AOS within the 180 days, the clock so to speak stops ticking until the decision is made by the immigration department. So if it was denied, I would technically not of overstayed the 180 days? so if i left the country before that time expired why would i still have the chance off a 3 yr ban? Is it down to the fact of being deported?

The clock only stops if you are approved. If you file your AOS paperwork, you are still "out of status" but they sometimes allow you to remain in the country while the case is being adjudicated. If you are denied, that means that the entire time you were waiting for the AOS you were out of status and were in an over-stay situation. The clock doesn't stop then start again. The days you are waiting count, unless your AOS is approved. If it's denied, not only have you increased the number of overstay days, you will have the ban put in place as well.

[Harpa Timsah 13,258]

I don't beleive you are correct. The clock stops once you get your NOA1. I will look for further confirmation meanwhile.

[marlea 84]

I don't beleive you are correct. The clock stops once you get your NOA1. I will look for further confirmation meanwhile.

Yes, it stops when you receive your NOA1. And then it doesn't matter how long it takes, if you get an approval, you are fine. If you are denied, they go back to when the clock stopped (which is usually a few months before) and consider all that time that has now passed as overstay. That's what I meant when I said it doesn't stop unless you get an approval. If you get denied, every day you sat waiting to hear your decision, you were accumulating days of overstay.

[The Heub's 0]

Yes, it stops when you receive your NOA1. And then it doesn't matter how long it takes, if you get an approval, you are fine. If you are denied, they go back to when the clock stopped (which is usually a few months before) and consider all that time that has now passed as overstay. That's what I meant when I said it doesn't stop unless you get an approval. If you get denied, every day you sat waiting to hear your decision, you were accumulating days of overstay.

Hi Marlea as far as we are aware the clock stops from whenever you file the AOS, even if your denied it goes back to the original date you applied as long as your still in the 180 day time frame there would be no ban...Can i ask were you got that information..i welcome comments from anyone good or bad! thanks

[marlea 84]

Hi Marlea as far as we are aware the clock stops from whenever you file the AOS, even if your denied it goes back to the original date you applied as long as your still in the 180 day time frame there would be no ban...Can i ask were you got that information..i welcome comments from anyone good or bad! thanks

I can't remember the case exactly, but I will try to find it for you. It was another Visa Journey member, if I remember correctly. I'll do my best to find it.

[marlea 84]

I can't seem to find it. It's possible that I read it incorrectly, or remember it incorrectly as well. If I am wrong, I apologize.

[trillium13 84]

OP, how many days are you into overstay now, if any?

[JimVaPhuong 4,863]

The INA specifically says that the AOS applicant is granted a "period of authorized stay" while the AOS application is being adjudicated. That period doesn't become a period of unauthorized stay if the AOS application is denied. The only time I've ever heard of them reversing a period of authorized stay and turning it into overstay time is in the case of a frivolous asylum application. The overstay clock stops when the AOS application is accepted by USCIS, it becomes irrelevant if they are ultimately approved, and resumes running again if they are ultimately denied. There is a section of the Adjudicators Field Manual that specifically addresses how an immigration officer calculates overstay. I'll try to find it when the USCIS site isn't being an a$$.

Thanks for the replies and information. The only thing I really do not understand is that when applying for the AOS within the 180 days, the clock so to speak stops ticking until the decision is made by the immigration department. So if it was denied, I would technically not of overstayed the 180 days? so if i left the country before that time expired why would i still have the chance off a 3 yr ban? Is it down to the fact of being deported?

If you don't have 180 days of accumulated overstay now then you could leave and return to your home country. Your husband could file an I-130, and within a year you'd return with a CR1 visa and get your green card automatically shortly after arriving. No bans. No waivers. No problems.

If you stay and apply for AOS then your application will either be approved or denied. If it's approved, then you have no problems. If it's denied, you'll likely be ordered immediately deported. You may be given 30 days to leave, but it would still count as an order of deportation. This is different from what happens to someone who is denied AOS after entering with a visa. They would be given a notice of intent to begin removal proceedings, which begins the whole judicial process of obtaining a deportation order. Because you entered with the VWP, you don't get the judicial process. The IO who denies your AOS can issue a deportation order immediately.

You can still voluntarily return to your home country, but now you've been deported from the US. If they deport you for the overstay then you'll get a 10 year ban. If they slap on some other charge then the ban could be for the rest of your life. In either case, you'll need an I-212 hardship waiver to get a visa to return to the US.

[The Heub's 0]

The INA specifically says that the AOS applicant is granted a "period of authorized stay" while the AOS application is being adjudicated. That period doesn't become a period of unauthorized stay if the AOS application is denied. The only time I've ever heard of them reversing a period of authorized stay and turning it into overstay time is in the case of a frivolous asylum application. The overstay clock stops when the AOS application is accepted by USCIS, it becomes irrelevant if they are ultimately approved, and resumes running again if they are ultimately denied. There is a section of the Adjudicators Field Manual that specifically addresses how an immigration officer calculates overstay. I'll try to find it when the USCIS site isn't being an a$$.

If you don't have 180 days of accumulated overstay now then you could leave and return to your home country. Your husband could file an I-130, and within a year you'd return with a CR1 visa and get your green card automatically shortly after arriving. No bans. No waivers. No problems.

If you stay and apply for AOS then your application will either be approved or denied. If it's approved, then you have no problems. If it's denied, you'll likely be ordered immediately deported. You may be given 30 days to leave, but it would still count as an order of deportation. This is different from what happens to someone who is denied AOS after entering with a visa. They would be given a notice of intent to begin removal proceedings, which begins the whole judicial process of obtaining a deportation order. Because you entered with the VWP, you don't get the judicial process. The IO who denies your AOS can issue a deportation order immediately.

You can still voluntarily return to your home country, but now you've been deported from the US. If they deport you for the overstay then you'll get a 10 year ban. If they slap on some other charge then the ban could be for the rest of your life. In either case, you'll need an I-212 hardship waiver to get a visa to return to the US.

Hi There, Just to clarify even though im not out off the 180 days if the application is denied i can still face a ban? Its so confusing as the IO we spoke with yesterday said that the clock stops and then starts again if denied ..so i should still be able to leave the US with no ban! we have 2 days to decide whether to go ahead with the AOS so anymore thoughts would be great. Also we have been told that getting in contact with your local congressman can help, has anyone else tried this route? Thanks